The Iowa Supreme Court in its first decision of the term handed down Oct. 13 agreed with a convicted sex offender that his prison sentence was wrongly extended by more than three years by the Iowa Department of Corrections (IDOC).

At the heart of the appeal is a state statute that grants prison inmates early release based on good behavior. An inmate is eligible to earn credits equal to 1.2 days of sentence reduction for every day of good behavior. These so-called “earned-time credits” encourage prisoners to follow prison rules and participate in treatment programs.

Marshall Miller was serving a prison sentence for third-degree sex abuse that required completion of a sex-offender treatment program. By the time Miller entered the treatment program, he had earned enough credits to be released in March 2016. Before completing treatment, however, he was removed from the program due to prison rules infractions.

Under the Department’s previous interpretation of state law, that meant Miller would be ineligible for any additional credits toward early release while keeping those he had already earned. But the Department changed its interpretation in 2016 to say that sex offenders who refuse or are removed from sex-offender treatment forfeit not just future earned-time credits but credits already earned as well.

The difference meant Miller’s projected release date was extended by three years and nine months, to December 2019. Since the Department applied the change retroactively, it similarly affected approximately 150 Iowa prison inmates.

Miller argued in his appeal that the Department had it right in its original interpretation of the statute, and the Supreme Court agreed. In fact, that is the position the court took when it addressed this issue in its 2009 ruling in Holm v. State.

In that ruling, the court adopted the State’s position at the time that Iowa Code section 903A.2 should be read to say that an inmate will no longer accrue any earned time after refusing to attend the sex offender treatment program but will not lose any previously accrued earned time. The court has adhered to that position in subsequent decisions on the issue, and the legislature has acquiesced to these precedents by declining to change the language of the statute.

Justice Thomas Waterman, writing for the court in the Jones County decision, said “the legislature has amended the statute five times without altering our interpretation in Holm. We thus conclude that the legislature acquiesced in Holm’s interpretation” of the statute. “The IDOC cannot overrule Holm by administrative fiat; rather, a legislative amendment to section 903A.2 is required before the IDOC may begin forfeiting previously accrued earned time based on a sex offender’s refusal or removal from SOTP.”

Pamela and Jeremy Plowmans’ appeal to the Iowa Supreme Court presented hard questions about the rights of parents to be informed about abnormalities of an unborn child that may lead them to choose an abortion.

The Court, carefully picking through this moral minefield, issued a decision Friday that focused on the narrow question of whether the courthouse doors should be open or closed to such “wrongful birth” claims.

Six of seven justices concluded they should be open.

“The right to sue for wrongful birth belongs to parents who were denied the opportunity to make an informed choice whether to lawfully terminate a pregnancy in Iowa,” Justice Thomas Waterman wrote for the majority. “It is not this court’s role to second-guess that intensely personal and difficult decision. Parents of children with disabilities may find their lives enriched by the challenges and joys they confront daily. But under our tort law, financial compensation should be paid by the negligent physician if liability is proven.”

The Court held separately that a father has a right to bring a wrongful birth claim.

In addition to Waterman, the decision was supported by Justices Brent Appel, David Wiggins, Daryl Hecht and Bruce Zager. Chief Justice Mark Cady wrote a separate concurring opinion, and Justice Edward Mansfield filed a dissent.

The issue in this case is not assigning fault for a fetal abnormality but the right to know about it in order to make an informed choice about whether to terminate the pregnancy.

When Pamela Plowman was 22 weeks into her pregnancy an ultrasound test showed that the fetus’ head was “abnormally small” and follow-up tests were recommended. The radiologist did not report these findings, however, and Pamela’s obstetrics doctor told her the ultrasound showed that “everything was fine” with the baby’s development. There were no follow-up tests.

Today the child, identified as “Z.P.” in court documents, “suffers from cerebral palsy, microcephaly, intellectual disability, cortical visual impairment, and seizure disorder. He requires frequent visits to numerous doctors in Iowa City and Keokuk. Physical therapists come to his home one to two times weekly. He is on daily medication for seizures and reflux.” And, Waterman wrote, “it is unlikely Z.P. will ever walk or speak.”

While the exact cause of Z.P.’s disabilities has not been determined, the Plowmans (who have since divorced) contend they are related to the abnormal head circumference identified in the ultrasound test. They sued, accusing medical professionals of negligence by failing to accurately diagnose and communicate these fetal abnormalities. Had she known of them prior to birth, Pamela would have had an abortion.

The suit presented a question of “first impression” to the Iowa Supreme Court.

In 1984 the Court held that parents could not recover for a “wrongful pregnancy” after a failed abortion led to the birth of a healthy child because “a parent cannot be said to have been damaged or injured by the birth and rearing of a normal, healthy child.” But, before now it had not ruled on whether parents of a child born with severe disabilities can sue for wrongful birth.

At least 23 states have recognized wrongful birth claims through judicial decisions, and Maine has done so by statute. Three state supreme courts have refused to allow wrongful-birth claims, and 12 states bar such claims by statute.

The prevailing view in other state courts, Waterman wrote, is that the “injury is not the resulting life, but the negligent deprivation of information important to the parents’ choice whether to terminate a pregnancy.” He compared this to a claim for medical negligence based on lack of informed consent and the legal principle that a patient has the right to “exercise control over his or her body by making an informed decision.”

In response to the defendants’ argument that wrongful-birth claims will stigmatize disabled people generally, Waterman said that “concern does not warrant closing the courthouse door to these parents,” who seek compensation to cover medical and educational expenses to minimize a child’s disability.

In his concurrence, Chief Justice Cady said he would not make a distinction between a child “perceived as ‘normal’ and a child perceived as “disabled.’ ”

The majority decision “implies that while the benefits of parenting ‘normal, healthy’ children can outweigh the costs, the benefits of parenting a disabled child will not,” Cady wrote. “Society would be better served if we proceed forward with this tort by abandoning the inclination to distinguish people as either normal or disabled.”

Justice Mansfield expressed stronger concerns in his dissent, arguing that such legal claims are contrary to concepts of common law and are specifically barred by statute. Moreover, he said, there are good public policy reasons not to recognize such claims.

“In my view, the court’s ruling leads to a slippery slope,” Mansfield wrote. “True, today’s decision is limited to a ‘severely disabled child.’ But the court does not define the term. What if testing indicates the child will be born blind or without a hand? Is that enough?”

Also, Mansfield said there is the problem of excluding jurors in such cases who have “deep-seated moral and religious objections to abortion, even if the unborn child has a severe disability.”

Mansfield said he would leave it to the Iowa Legislature to decide this issue, and the majority opinion might also be read as inviting that outcome: “If the legislature disagrees with our decision,” Waterman wrote, “it is free to enact a statute precluding wrongful-birth claims.”

“In his professional life, Tom Waterman, 53, is a fourth-generation member of the storied Davenport law firm of Lane & Waterman, and a justice of the Iowa Supreme Court. In his personal life, he is a husband, father, fitness buff and collector of beer cans.”

So begins an article by Alma Gaul that ran in the Quad-City Times last Sunday; the article is postedhere.